The Human Rights Committee,
established under article 28 of the International Covenant on Civil and
Political Rights,

Meeting on 4 November 1997,

Having concluded its
consideration of communication No. 706/1996 submitted to the Human Rights
Committee by Mrs. G. T. on behalf of her husband, T., under the Optional
Protocol to the International Covenant on Civil and Political Rights,

Having taken into account all
written information made available to it by the author of the communication
and the State party,

Adopts the following:

VIEWS UNDER ARTICLE 5, PARAGRAPH
4, OF THE OPTIONAL PROTOCOL

1. The author of the
communication is Mrs. G. T., an Australian citizen, residing in Castlemaine,
Victoria. She submits the communication on behalf of her husband, T., a
Malaysian citizen born in 1962, currently in Australia under threat of
deportation. She claims that her husband's deportation to Malaysia would
violate his right to life.

FACTS AS SUBMITTED

2.1 T. was convicted in
Australia for importing around 240 grams of heroin from Malaysia into
Australia in 1992, and was sentenced to six years' imprisonment. On 15 June
1993, while in prison, T. sought refugee status, which was rejected on 10
August 1993. An application for review was refused by the Refugee Tribunal
on 6 July 1994, which considered that there was a real chance that T. would
face the imposition of the death penalty by the Malaysian authorities, but
that this did not constitute persecution in terms of the Refugee Convention.

2.2 Following his release
on parole, on 25 October 1995, T. applied for a protection visa, under
section 417 of the Migration Act. This visa was refused. At the time of
submission of the communication, this refusal was before the Australian
Federal Court.

2.3 The author married T.
on 21 January 1996. He became the stepfather of her sons. She states that if
her husband is extradited to Malaysia, he will be charged there again under
the Dangerous Drugs Act, section 39B of which provides for the mandatory
death penalty for trafficking drugs.

2.4 At the time of the
communication, T. was in Australia on a "bridging visa E", which expired on
9 June 1996. The author feared that her husband would be deported after the
expiry of this visa, as she expected the Federal Court to confirm his
deportation.

THE COMPLAINT

3.1 The author claims that
her husband's deportation to Malaysia, where there is a real chance that he
will face the death penalty, will violate Australia's duty to protect his
right to life. In this context, the author notes that Australia itself has
abolished the death penalty.

3.2 In support of her
claim, the author refers to a letter from the Australian Office of Amnesty
International, dated 25 March 1996 and addressed to the Minister for
Immigration and Ethnic Affairs. In the letter, AI opposes the forcible
return of T., as it believes that he will face the death penalty in Malaysia
as a result of his conviction in Australia. In this context, AI notes that a
person found to have been in possession of more than 15 grams of heroin
faces a mandatory death sentence in Malaysia.

3.3 The author further
states that the Dangerous Drugs Act provides for elimination of bail, so
that persons awaiting trial are always kept in detention. She further states
that there is a delay of up to four or five years for the initial trial, and
three of four years for an appeal. She therefore argues that her husband
would also likely spend seven to nine years in prison before being executed.

3.4 She further states
that an amendment to the law, now also provides for the mandatory whipping
for everyone convicted under the Dangerous Drugs Act, although it is not
clear whether this is also applied in capital punishment cases.

3.5 It is further
submitted that persons suspected of drug offences can be detained for up to
two years in preventative detention without a possibility of recourse to the
courts. She argues that this would be in violation of the right not to be
arbitrarily detained.

3.6 The author also claims
that the investigation in her husband's case would not be fair, and that he
will not receive a fair trial, because of his ethnicity and his lack of full
understanding of Malay, in violation of his right to equality before the
law.

3.7 The author concludes
that by returning her husband to Malaysia, Australia will violate its
fundamental duty of protection, and will cause a trauma for her and her
sons.

Committee's rule 86 request

4.1 On 17 June 1996, the
Committee, acting through its Special rapporteur for New Communications,
requested the State party not to deport T. to Malaysia or to any country
where he would likely face the death sentence.

4.2 On 3 June 1997, the
State party requested the Committee to lift its request under rule 86. In
this context, it referred to assurances which it had received from the
Malaysian Government that "any Malaysian national who had committed and
being sentenced overseas on the charge of any offence committed overseas
will not be prosecuted upon his return to Malaysia for a charge or charges
relating to his offence committed overseas. As such, the question of double
jeopardy will not arise. Nevertheless, a Malaysian national may be charged
by the Malaysian authorities due to other offences that he might had
committed in Malaysia." The State party added that the contents of the
Malaysian assurances had been brought to the attention of T. by letter of 30
May 1995, who replied by letter of 7 June 1995 that the information was
"very comforting and reassuring".

STATE PARTY'S OBSERVATIONS ON
ADMISSIBILITY AND MERITS

5.1 The State party
requests the Committee to examine admissibility and merits of the
communication simultaneously. The State party has identified the issues
raised by the author in her communication as issues under articles 2, 6, 7,
9, 14 and 26 of the Covenant.

5.2 The State party
explains that T.'s application to the Federal Court was finalised on 11
March 1997, when he withdrew his application in the light of the Court's
recent ruling in a similar case. Following T.'s further application under
section 417 of the Migration Act 1958, which allows the Minister to grant
persons the right to stay in Australia for humanitarian reasons, he has been
granted a further bridging visa until 11 July 1997. Should his request not
have been considered by that date, he would be eligible for an extension of
the visa.

5.3 As to article 2, the
State party argues that the rights under this provision are accessory in
nature and linked to the other specific rights enshrined in the Covenant. It
recalls the Committee's interpretation of a State party's obligations under
article 2, paragraph 1, pursuant to which if a State party takes a decision
concerning a person within its jurisdiction, and the necessary and
foreseeable consequence is that this person's rights under the Covenant will
be violated in another jurisdiction, the State party itself may be in
violation of the Covenant See Views on communications Nos. 469/1991 (Ch. Ng
v. Canada), adopted on 5 November 1993, paragraph 6.2; and 470/1991 (J.
Kindler v. Canada), Views adopted 30 July 1993.. It notes however that the
Committee's jurisprudence has been applied so far to cases concerning
extradition, whereas the author's case raises the issue of the "necessary
and foreseeable consequence" test in the context of expulsion of an
individual who was convicted of serious drug offences and who has no legal
basis for remaining in Australia: it cannot be said that a retrial for drug
trafficking offences is certain or the purpose of returning T. to Malaysia.

5.4 In the State party's
opinion, a narrow construction of the "necessary and foreseeable
consequences" test allows for an interpretation of the Covenant which
balances the principle of State party responsibility embodied in article 2
(as interpreted by the Committee) and the right of a State party to exercise
its discretion as to whom it grants a right of entry. To the State party,
this interpretative approach retains the integrity of the Covenant and
avoids a misuse of the Optional Protocol by individuals who entered
Australia for the purpose of committing a crime and who do not have valid
refugee claims.

5.5 Regarding article 6,
the State party recalls the Committee's jurisprudence as set out in the
Views on communication No. 539/1993 Communication No. 539/1993 (Keith Cox v.
Canada), Views adopted 31 October 1994, paragraph 16.1. and notes that while
article 6 of the Covenant does not prohibit the imposition of the death
penalty, Australia has, by accession to the Second Optional Protocol to the
Covenant, undertaken an obligation not to execute anyone within its
jurisdiction and to abolish capital punishment. The State party argues that
the author has failed to substantiate her allegation that it would be a
necessary and foreseeable consequence of her husband's mandatory removal
from Australia that his rights under article 6 of the International Covenant
on Civil and Political Rights and article 1, paragraph 1, of the Second
Optional Protocol will be violated; this aspect of the case should be
declared inadmissible under article 2 of the Protocol, or dismissed as being
without merits.

5.6 According to the State
party, the mere allegation that T. would be liable under the Dangerous Drugs
Act 1952, upon his return to Malaysia, is insufficient to substantiate the
claim that there is a real risk that he will be charged, prosecuted and
sentenced to death. The State party notes that expulsion is distinguishable
from extradition in that the very purpose of extradition is to return a
person for prosecution or to serve a sentence, whereas no such necessary
connection exists between expulsion and possible prosecution.

5.7 The State party
submits that the author has failed to provide any evidence that T. will be
prosecuted, or is likely to be prosecuted, on his return to Malaysia. The
State party refers to the assurances given by Malaysia (see paragraph 4.1)
and argues that a written assurance from a receiving State should be
accepted as conclusive evidence that there is no necessary and foreseeable
risk of a violation. The State party submits that further inquiries confirm
that there is no risk to T. of prosecution. In this context, it refers to
information from the Australian Mission in Kuala Lumpur that: "The Royal
Malaysian Police have orally confirmed to us that they do not institute
criminal proceedings for trafficking in drugs against a person returned to
Malaysia - that is for exporting narcotics - and to our knowledge this has
never occurred nor do any of our interlocutors consider it ever likely to
occur. We have no reason to doubt that Malaysia will continue to abide by
the principles governing double jeopardy as it has in the past." The State
party adds that in three previous cases concerning persons convicted and
sentenced for drug trafficking offences in Australia, it sought advice on
whether that person might be subject to charges in Malaysia relating to the
drug trafficking offence. On each occasion, the information confirmed that
such a risk would not arise. The State party has no evidence that a person
in similar circumstances as T. has been charged and executed on return to
Malaysia.

5.8 As regards the
author's reliance on the Refugee Review Tribunal's opinion that there is a
real chance that her husband would be charged under the Dangerous Drugs Act,
the State party explains that in the Tribunal's jurisprudence a "real
chance" is one that is "not remote" regardless of whether it is less or more
than 50 per cent. This approach is consistent with the objects of the
Refugee Convention and reflects the practical evidential difficulty of
proving a refugee claim but, according to the State party, it does not
suffice for the purposes of proving a violation of the Covenant. In this
context, the State party argues that it would be incorrect to interpret the
Covenant either by reference to interpretations of domestic law or by
reference to the requirements of the Refugee Convention. The State party
argues that the "necessary and foreseeable consequence" test places a higher
burden on a complainant than that of "real chance". According to the State
party, under the Covenant the individual is required to demonstrate that a
prospective violation can be foreseen and is inevitable and that there is a
clear causal link between the decision of the expelling State and the future
violation by the receiving State.

5.9 In respect to the
claim that T. is likely to be subject to corporal punishment or extended
periods on death row when sentenced under Malaysian law, the State party
refers to its arguments in relation to article 6 of the Covenant and argues
that no real risk exists that he will be prosecuted under the Dangerous
Drugs Act.

5.10 Alternatively, the
State party submits that the author has provided insufficient evidence that
T., if he would be prosecuted and convicted, is at risk of being subjected
to caning or to a unreasonable period of detention on death row. In this
context, the State party refers to information received from its Mission in
Kuala Lumpur regarding the detention on death row that "it is the considered
view of our interlocutors that there is nothing notably inhumane or
unusually harsh about the conditions of those placed in Malaysia's death
row". The State party contends that the author offers insufficient evidence
that T., in the particular circumstances of his case, is personally at risk
of caning or being held for an unreasonable length of time on death row.

5.11 As regards article 9 of
the Covenant, the State party accepts that the Dangerous Drugs (Special
Preventative Measures) Act 1985 provides for preventative detention of
persons suspected of involvement in drug trafficking. It also accepts that
the Act provides for the detention of such a person for up to two years for
the purposes of questioning and the investigation of offences. The State
party further acknowledges that it is likely that T. will be questioned on
return to Malaysia in connection with the offences for which he was
convicted in Australia. It argues however that the mere questioning of an
individual on return to his country of nationality in relation to his
conviction by another State does not of itself amount to a necessary and
foreseeable breach of his Covenant rights.

5.12 According to
information received by the Australian Mission in Kuala Lumpur, a Malaysian
national convicted of drug trafficking offences overseas would probably be
put on a watch-list. The deportee would be met on arrival at the airport by
members of the Anti-Narcotics Branch of the Malaysian Police. He would be
interviewed to gain insight into his role and, if the police determined that
he had limited involvement in trafficking of the drug, was not a member of a
criminal syndicate and has little intelligence to offer, preventative
detention could well not occur. The State party emphasizes that preventative
detention is not automatic and depends on the circumstances of each
individual case. In the case of T., he had never been sentenced for a drug
offence before, and he has claimed that he is not part of a drug network and
that he did not know the contents of the bag containing heroin. In those
circumstances, it is not likely according to the State party that he would
be kept in preventative detention. Moreover, the Act provides for
restriction orders as an alternative to detention. In view of all this, the
State party argues that detention in violation of article 9 is not a
necessary and foreseeable consequence of Australia's decision to return T.
to Malaysia.

5.13 The State party argues
that its obligation in relation to future violations of human rights by
another State arises only in cases involving a potential violation of the
most fundamental human rights and does not arise in relation to allegations
under article 14, paragraph 3. It recalls that the Committee's jurisprudence
so far has been confined to cases where the alleged victim faced extradition
and where the claims related to violations of articles 6 and 7. In this
context, it refers to the jurisprudence of the European Court of Human
Rights in the case of Soering v. United Kingdom, where the Court, while
finding a violation of article 3 of the European Convention, stated in
respect of article 6 that issues under that provision might only
exceptionally be raised by an extradition decision in circumstances where
the fugitive has suffered or risks suffering a flagrant denial of due
process in the requesting state. In the instant case, the author claims that
T. will not get a fair trial because of his Chinese ethnicity, since he
cannot read or write English and is not fluent in Malay. Information
provided by the Australian Mission in Kuala Lumpur shows that an accused
would have access to proper legal representation and to interpretation
services, as well as to legal aid. The State party argues therefore that
there is no real risk that T.'s rights under article 14 would be violated.

5.14 As regards the author's
claim that her husband would be subject to discrimination on the ground of
his Chinese ethnicity, the State party argues that this claim should be
declared inadmissible for failure of substantiation or should be dismissed
as unmeritorious. In this respect, the State party refers to its arguments
relating to articles 6 and 14, as well as to the decision of the Refugee
Review Tribunal in T.'s case, where the Tribunal found that his lack of
fluency would not preclude a fair interrogation by the police, and that
there was no evidence that the death penalty was disproportionately applied
to Chinese compared to members of other ethnic groups.

AUTHOR'S COMMENTS ON THE STATE
PARTY'S OBSERVATIONS

6.1 By submission of 4
October 1997, the author requests the Committee to maintain its request to
the State party not to return T. to Malaysia. She notes the assurances given
by the Malaysian Government, that a Malaysian national will not be
prosecuted for crimes which he committed in another country, but points out
that it is also said that he may be charged with offences committed under
Malaysian law. She contends that, since it is obvious that the drugs found
in her husband's possession when he came off the plane were obtained in
Malaysia, it is clear that he committed a criminal offence in Malaysia under
section 37 of the Dangerous Drugs Act, which provides for the mandatory
death penalty for trafficking drugs. Section 37(d) of the same Act provides
that any person who is found to have had drugs in his custody or under his
control shall be deemed to have known the nature of such drug. She concludes
that the so-called assurances from the Malaysian Government do not preclude
the possibility that her husband will be prosecuted upon return.

6.2 As to her husband's
letter of reply to the assurances, the author explains that this letter was
written by another inmate in prison, and that her husband signed the letter
thinking it was a thank you letter in general terms. In this context, she
explains that her husband's knowledge of English is limited and that he
cannot write or read it.

6.3 The author reiterates
that a "real chance" exists that her husband's rights under the Covenant
will be violated upon his return to Malaysia, in particular his right to
life. She claims that Australia has a duty under the Covenant to prevent the
violation of Covenant rights by allowing her husband to stay in the country.
In this context, she states that in 1994, the Australian Federal Government
offered T. protection in exchange for assistance in disclosing involvement
of federal officers in tampering with imported drugs. However, he declined
the offer fearing that his life would be endangered in Australia as well, if
he would cooperate. The author suggests that the Government at that time
tried to make her husband cooperate knowing that he would face danger in
Malaysia and making use of his fear in this respect.

6.4 The author
acknowledges that her husband's expulsion does not have as its purpose his
handing over to stand trial. However, she states that it is beyond doubt
that the Malaysian Government will take action against her husband for the
drugs that he had in his possession in Malaysia, and that by making this
possible through expelling him, Australia will become an accessory to the
violation of her husband's Covenant rights in Malaysia.

6.5 The author
acknowledges that Australia has an interest in promoting the security of its
society, but states that her husband has already served the sentence the
courts imposed upon him, that he has been reformed, that he has no more
dealings with drugs, that he has been working for a year and that he is
striving for forgiveness of his past wrongs. He wishes to start a new life
and to raise a family. The author does not question Australia's right to
decide to whom it grants entry, but according to her, Australia's duty to
protect life must prevail.

6.6 As regards the risk of
prosecution under the Dangerous Drugs Act, the author recalls that the death
penalty is mandatory in Malaysia for trafficking in drugs. She submits that
her husband's family have made inquiries and found that his name is placed
on the Malaysian computers for arrest. It is said that T.'s mother fears for
his life and has even come to Australia to persuade him not to return to
Malaysia. The author argues that even if there were only a remote chance of
prosecution, this would constitute a real risk. In this context, she notes
that the State party has not provided conclusive evidence that her husband
will not be arrested in Malaysia for exporting drugs, therefore her husband
has a well-founded fear that he will be arrested and prosecuted under the
Dangerous Drugs Act. Since it is not possible to predict the outcome of such
prosecution, a real risk exists that the death penalty will be imposed.

6.7 As regards the
information gathered by the Australian Mission in Kuala Lumpur, the author
notes that there is no written proof of these assurances, and that the only
written assurances do not exclude prosecution for exporting drugs. The
author requests the Committee to give full consideration to even a remote
chance of prosecution rather than a foreseeable consequence. The author
refers to the Committee's jurisprudence that the words of the Covenant have
a meaning separate from that of the national legal system and states that
this is the reason why she submitted her husband's case. Since the
Australian legal system has failed to protect his life, she expects the
Committee to uphold her husband's right to life.

ISSUES AND PROCEEDINGS BEFORE
THE COMMITTEE

7.1 The Committee
appreciates that the State party has, although challenging the admissibility
of the author's claims, also provided information and observations on the
merits of the allegations. This enables the Committee to consider both the
admissibility and the merits of the present case, pursuant to rule 94,
paragraph 1, of the Committee's rules of procedure.

7.2 Pursuant to rule 94,
paragraph 2, of the rules of procedure, the Committee shall not decide on
the merits of a communication without having considered the applicability of
any of the grounds of admissibility referred to in the Optional Protocol.

7.3 The author has claimed
that her husband would face unequal treatment because of his ethnic
background and his poor knowledge of Malay, and that this would render the
trial against him unfair. The Committee notes that the author has failed to
provide sufficient substantiation of her claim, for purposes of
admissibility. This part of the communication is thus inadmissible under
article 2 of the Optional Protocol.

7.4 As regards the
author's claim that the deportation of her husband would violate the rights
to family life protected under articles 17 and 23 of the Covenant, the
Committee finds that this claim is not sufficiently substantiated for
purposes of admissibility and thus inadmissible under article 2 of the
Optional Protocol.

7.5 The Committee
considers that no obstacles to the admissibility of the author's remaining
claims exist and proceeds with an examination of the merits of the case.

8.1 What is at issue in
this case is whether by deporting T. to Malaysia, Australia exposes him to a
real risk (that is, a necessary and foreseeable consequence) of a violation
of his rights under the Covenant. States parties to the Covenant must ensure
that they carry out all their other legal commitments, whether under
domestic law or under agreements with other states, in a manner consistent
with the Covenant. Relevant for the consideration of this issue is the State
party's obligation, under article 2, paragraph 1, of the Covenant, to ensure
to all individuals within its territory and subject to its jurisdiction the
rights recognized in the Covenant. The right to life is the most fundamental
of these rights.

8.2 If a State party
deports a person within its territory and subject to its jurisdiction in
such circumstances that as a result, there is a real risk that his or her
rights under the Covenant will be violated in another jurisdiction, that
State party itself may be in violation of the Covenant.

8.3 The Committee observes
that article 6, paragraphs 1 and 2 read together, allows the imposition of
the death penalty for the most serious crimes, but that the Second Optional
Protocol, to which Australia is a party, provides that no one within the
jurisdiction of a State party shall be executed and that the State party
shall take all necessary measures to abolish the death penalty in its
jurisdiction. The provisions of the Second Optional Protocol are to be
considered as additional provisions to the Covenant.

8.4 In cases like the
present case, a real risk is to be deducted from the intent of the country
to which the person concerned is to be deported, as well as from the pattern
of conduct shown by the country in similar cases. The Australian Government
is deporting T. from its territory because he has no entitlement to remain
in Australia; Malaysia has not requested T.'s return. Although the Committee
considers that the "assurances" given by the Malaysian Government do not as
such preclude the possibility of T.'s prosecution for exporting or
possessing drugs, nothing in the information before the Committee points to
any intention on the part of Malaysian authorities to prosecute T. The State
party itself has made investigations into the possibility of the imposition
of the death sentence for T. and has been informed that in similar cases no
prosecution has occurred. In the circumstances, it cannot be concluded that
it is a foreseeable and necessary consequence of T.'s deportation that he
will be tried, convicted and sentenced to death.

8.5 The Committee
therefore concludes that Australia would not violate T.'s rights under
article 6 of the Covenant and article 1 of the Second Optional Protocol if
the decision to deport him were to be implemented.

8.6 In assessing whether
the author could be exposed to a real risk of a violation of article 7 of
the Covenant, because he might be subjected to caning, considerations
similar to those detailed above in paragraph 8.4 apply. The information
before the Committee does not indicate that any treatment in violation of
article 7 of the Covenant is the foreseeable and necessary consequence of
T.'s deportation from Australia. The Committee concludes that Australia
would not violate its obligations under article 7 of the Covenant if it
deports T. to Malaysia.

8.7 With regard to the
possible preventative detention of T. under the Dangerous Drugs (Special
Preventative Measures) Act 1985, the Committee notes that it is likely that
T. will be detained for questioning upon his return to Malaysia. According
to the State party, however, preventative detention is not automatic and is
not likely to occur in the instant case, taking into account T.'s limited
knowledge of the trafficking in which he was involved. The author has not
challenged this information, and only relies on the existence of the law in
claiming that there is a risk that her husband may be subject to
preventative detention. In the circumstances, the Committee cannot conclude
that T.'s deportation to Malaysia would amount to a violation by Australia
of his rights under article 9 of the Covenant.

9. The Human Rights
Committee, acting under article 5, paragraph 4, of the Optional Protocol to
the International Covenant on Civil and Political Rights, is of the view
that the facts before it do not reveal a violation by Australia of any of
the provisions of the Covenant.

To my regret I have had to
disagree with the Committee's decision to deal jointly with the
admissibility and merits of the present case. This possibility, provided for
by the Committee's rules of procedure, should not in my opinion be resorted
to in every case. In relation to the present communication, in which the
author did not specify the Covenant articles she invoked, the merger of
admissibility and merits has meant that the State party has in fact had the
possibility to determine, in its rejoinder, the substantive issues to be
dealt with by the Committee.

In my opinion the communication
raises more issues under the Covenant than those to which the State party
replied. In particular, this is true for the protection of family life under
article 17 and article 23, paragraph 1. The State party has failed to
address the issue of whether the reasons justifying the deportation of a
person who has fully served his criminal sentence and who has already been
able to re-establish his family life are weighty enough to legitimize the
adverse consequences for the family life of the person and his closest ones.
In my opinion, the Committee should have taken a separate decision declaring
the case admissible and asking the State party to again comment on the
merits of the case, at least in relation to articles 17 and 23.

As far as the remaining aspects
of the case are concerned, I wish to emphasize that several factors
distinguish the present case from the Committee's previous decision in
A.R.J. v. Australia (communication No. 692/1996). I refer to the dissenting
opinion by Mr. Klein and Mr. Kretzmer and find that Australia would violate
its obligations under article 7 of the Covenant, the prohibition of torture
or cruel, inhuman or degrading treatment, if the decision to deport Mr. T.
to Malaysia were to be implemented.

M. Scheinin [signed]

B. INDIVIDUAL OPINION BY
COMMITTEE MEMBERS ECKART KLEIN AND DAVID KRETZMER (DISSENTING)

1. The question in this
communication is whether the author's husband T will be subject to a real
risk of the death penalty if the State party deports him to Malaysia. In
assessing whether such a risk has been established two factors have to be
considered:

(a) Does the law in
Malaysia provide the death penalty for an act committed by T.?

(b) If the answer to a. is
positive, what are the chances that the law will be enforced if T. returns
to Malaysia?

2. The author has
presented evidence to the Committee that a person found to have been in
possession of more than 15 grams of heroin faces a mandatory death sentence
in Malaysia. This evidence was not contradicted by the State party. As T.
was convicted of importing 240 grams of heroin from Malaysia into Australia
it has been clearly established that under Malaysian law he is subject to a
mandatory death sentence. This clearly distinguishes this communication from
communication No. 692/1996, decided by the Committee in July 1997, since in
that communication there was clear evidence that the maximum sentence in
Iran for trafficking the amount of cannabis the author was convicted of
possessing in Australia was five years' imprisonment (see para. 6.12 of
Committee's Views). The argument of the author in that case was that the
death penalty would be imposed, even though it was not provided for under
Iranian law. The argument in the present case is that the Malaysian
authorities will apply their law under which the death penalty is mandatory.

3. We cannot accept the
approach inherent in the Committee's statement that "nothing in the
information before the Committee points to any intention on the part of the
Malaysian authorities to prosecute T." (para. 8.4). As the death penalty is
mandatory for the offence committed by T. in Malaysia, we must assume that
this penalty will be imposed in Malaysia. The question is not whether an
intention of the Malaysian authorities to prosecute T. has been proved, but
whether strong evidence has been provided to refute the assumption that
Malaysian law will be applied. The answer is negative.

4. The assurances
provided to the State party by the Malaysian authorities and mentioned in
para. 4.2 of the Committee's Views clearly leave open the door to charge T.
for an offence committed in Malaysia. We cannot ascribe much weight to the
oral confirmation of the Royal Malaysian Police, mentioned in para. 5.7 of
the Committee's Views, that they do not institute criminal proceedings for
trafficking in drugs against a person returned to Malaysia. The assessment
of the Australian Mission in Kuala Lumpur, which received this oral
confirmation, was that "Malaysia will continue to abide by the principles of
double jeopardy as it has in the past." However, the question of double
jeopardy would arise only if Malaysia were to prosecute T. for acts which
constituted the crimes for which he was convicted in Australia. It would not
arise if the Malaysian authorities were to prosecute T. for possession of
drugs in Malaysia or for exporting drugs from that country. As these acts
carry a mandatory death sentence under Malaysian law something stronger than
a vague oral confirmation is required to refute the assumption that the
Malaysian authorities will indeed enforce their law.

5. In communication No.
692/1996 evidence was provided by the State party that other embassies in
Iran, one of which handles a high volume of asylum cases, had informed the
State party's embassy that no individuals who had been deported to Iran
after serving a prison sentence in another country for drug offences were
subject to rearrest and retrial. As opposed to this positive evidence that
persons in a similar situation to the deportee had not in fact been charged
in Iran, the evidence presented by the State party in the present
communication is negative: the State party knows of no cases in which a
person in similar circumstances to T. has been charged and executed on
return to Malaysia. (para. 5.7 of the Committee's Views). Like the oral
confirmation mentioned above this evidence is insufficient to refute the
assumption that Malaysian law will be applied in T.'s case.

6. In the light of the
above we are forced to conclude that there is a real risk that T. will face
a death sentence if he is deported to Malaysia. We are therefore of the
opinion that by deporting T. the State party would violate its obligation to
ensure his right to life under article 6 of the Covenant.